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47 years of Kesavananda Bharati Case

Context: Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

Amending the Constitution:

The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.

Under some Constitutions, certain parts are immune from amendments, and are given a special status compared to other provisions.

Golaknath case: In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

Amendment procedure as per Indian Constitution

Constitutional Provisions

Article 368 in part XX of the Constitution details the procedure of a constitutional amendment.

An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament.

A prior recommendation of the President is not required for the introduction of such a bill.

The Constitution of India provides for a distinctive amendment process when compared to the Constitutions of other nations. This can be described as partly flexible and partly rigid.

There is no provision for a joint sitting in case of disagreement between the two Houses.

Types of amendment:

The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.This is known as special majority.

The Bill, passed by the required majority, is then presented to the President who shall give his assent to the Bill.

Ratification by states: If the amendment seeks to make any change in any of the provisions mentioned in the provision to article 368, it must be ratified by the Legislatures of not less than one-half of the States.

Simple majority: The amendments contemplated in articles 4 (2), 169, 239A (2), 239AA (7b), 243M (4b), 243ZC (3), 244A (4), 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI.These amendments can be passed by Parliament by a simple majority such as that required for the passing of any ordinary law.

The amendments under this category are specifically excluded from the purview of article 368 which is the specific provision in the Constitution dealing with the power and the procedure for the amendment of the Constitution.

The tussle between Parliament and the judiciary:

In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the Golaknath case .

In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.

Golak nath vs State of Punjab, 1967 case where the main question was whether a Constitutional Amendment is a “law” under the meaning of article 13(2), and whether fundamental rights can be amended or not.

The court opined that:

Fundamental Rights are given a transcendental position in the constitution and are not amendable. They shall be covered under the parliamentary restrictions.

In order to amend Fundamental Rights, a new Constituent Assembly shall be necessary.

Article 368 provides the procedure to amend the Constitution but does not confer power on Parliament to amend the Constitution..

Basic structure doctrine: The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.

The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. Since then, the court has been adding new features to this concept.

‘Basic structure’ since Kesavananda:

Inclusions in basic structure doctrine: The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.

SR Bommai (1994): the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

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